R. v. Charley

R. v. Charley Collection Decisions of the Court of Appeal Date 2019-09-19 Neutral citation 2019 ONCA 726 Docket numbers C65681 Judges Doherty, David H.; Benotto, Mary Lou; Huscroft, Grant Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Charley, 2019 ONCA 726 DATE: 20190919 DOCKET: C65681 Doherty, Benotto and Huscroft JJ.A. BETWEEN Her Majesty the Queen Appellant and Ammaan Charley Respondent Michael Fawcett, for the appellant Philip Campbell and Howard L. Krongold, for the respondent Heard: February 26-27, 2019 On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated June 25, 2018, staying the charges against the respondent with reasons reported at 2018 ONSC 3551, 414 C.R.R. (2d) 45. Doherty J.A.: I overview [1] The respondent, Ammaan Charley, was found guilty of robbery with a firearm and related offences. Subsequent to the findings of guilt, but before sentence, the respondent brought a motion to stay the proceedings, claiming that his right to be tried within a reasonable time had been denied as a result of post-verdict delay. The trial judge granted the motion and stayed the proceedings. In doing so, he applied the presumptive 30-month ceiling established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 to the period beginning with the laying of the charge and extending to the anticipated date of sentencing. After deducting certain periods, the trial judge calculated the net delay at 32 months. He went on to hold that the Crown had not discharged its onus of showing that the delay was reasonable. [2] The Crown appeals. The Crown accepts that s. 11(b) applies throughout the trial process, including through sentencing. Crown counsel maintains, however, that post-verdict delay must be treated separately from pre-verdict delay and is not subject to the presumptive ceilings established in Jordan. Counsel contends that the onus of demonstrating the reasonableness of post-verdict delay is always on the defence and falls to be determined by the test set down in Jordan for delay that is below the presumptive ceilings. The Crown submits that the defence failed to show that the post-verdict delay was unreasonable. [3] The application of the Jordan analysis to post-verdict delay is an open question in this court. For the reasons that follow, I would hold that while the Jordan analysis does apply to post-verdict delay, the presumptive ceilings established in Jordan do not include post-verdict delay. Post-verdict delay, for the purposes of applying a presumptive ceiling, should be assessed separately from pre-verdict delay and should be subject to its own presumptive ceiling. I would fix that ceiling at five months. Applying that approach to this case, the post-verdict delay was not unreasonable. [4] With respect to the order this court should make, I am satisfied that this court has the jurisdiction to set aside the stay and either order a new trial, or affirm the finding of guilt and either sentence the respondent, or remit the matter to the trial court for sentence. I would set aside the stay, affirm the findings of guilt and remit the matter to the trial court for sentence. II factual background: the robbery [5] The Crown alleged that the respondent and an accomplice robbed a clerk in a convenience store at gunpoint. The Crown’s case relied primarily on the evidence of the clerk, Glassford Gordon. [6] Mr. Gordon testified that the respondent and a younger man entered the store together at about 5:30 p.m. As soon as they entered, the young man came over the counter and attacked Mr. Gordon. As Mr. Gordon struggled with the young man, he saw the respondent pointing a gun at him. The respondent pushed the young man out of the way and said to Mr. Gordon, “where’s the money?” [7] The respondent pushed Mr. Gordon toward the back of the store and continued to demand money. He struck Mr. Gordon on the head with the handgun twice, opening a significant gash on his head. The respondent also pulled a gold chain from Mr. Gordon’s neck and gave it to the young man. [8] The respondent continued to demand money. At one point, the respondent gave the gun to the young man, telling him to watch Mr. Gordon. The respondent had taken some keys from Mr. Gordon and was trying to open a door with one of the keys. [9] When the young man became distracted, Mr. Gordon grabbed the gun and ran into the alleyway behind the store. The respondent and the young man gave chase. The respondent grabbed the hand in which Mr. Gordon was holding the gun. They fell to the ground while struggling for the gun. The gun discharged twice. Fortunately, no one was hit. The young man, at the respondent’s urging, joined in the struggle for the gun, stomping on Mr. Gordon’s hand and grabbing the muzzle of the gun. [10] Mr. Gordon was determined to hold onto the gun, despite the attack by the respondent and the young man. When the police arrived at the scene in response to a 911 call, they found the respondent and Mr. Gordon in the alleyway on the ground, fighting for control of the gun. [11] Mr. Gordon’s evidence was supported in several respects by the physical and forensic evidence, and the evidence of a witness who saw the beginning of the attack in the store and the last stages of the struggle for the gun in the alleyway. That witness had called 911 immediately after she fled the store. [12] The respondent testified in his own defence. He indicated that he had been in the same store the previous day to purchase marijuana from Mr. Gordon. While he was there, a group of men robbed the store. He had nothing to do with the robbery and just happened to be in the wrong place at the wrong time. [13] In his evidence, Mr. Gordon confirmed that a group of masked men had robbed him the day before. The respondent was in the store at the time. He was not masked, and as far as Mr. Gordon could tell, was not involved in the robbery. [14] The respondent testified that he went back to the same store to purchase more marijuana the next day. He was with his girlfriend and a young man. They arrived in a taxi. His girlfriend stayed in the taxi while the respondent and the young man went into the store. [15] As soon as the respondent and the young man entered the store, the young man ran toward the clerk, jumped over the counter, and attacked him. It was the respondent’s evidence that, for the second day in a row, he had the misfortune of being in the store during a robbery in which he was not involved. [16] The respondent indicated that as soon as he realized that the young man was trying to rob the store, he ran out of the front door onto the street. He wanted nothing to do with the robbery. He did not return to the taxi where his girlfriend was waiting for him but instead walked in the other direction. [17] According to the respondent, he walked a short distance away from the store. He was standing on the street trying to decide what to do when he heard gunshots. He walked back to the store and saw Mr. Gordon and the young man fighting in the alleyway. The respondent decided to help the young man, who seemed to be losing the fight. The respondent and Mr. Gordon were struggling for possession of the gun in the alleyway when the police arrived in response to a 911 call. [18] The respondent denied that he was ever in possession of the gun and claimed to have no knowledge of the gun. In cross-examination, the defence suggested to Mr. Gordon that he had the gun because, as a drug dealer, he needed to protect himself. He denied the suggestion. [19] The trial judge disbelieved the respondent’s evidence. He went on to conclude, based on the rest of the evidence, including Mr. Gordon’s testimony, that the Crown had proven the allegations beyond a reasonable doubt: R. v. Charley, 2017 ONSC 605. III post-verdict proceedings [20] On June 25, 2018, 17 months after the trial judge found the respondent guilty on various charges, he entered a stay of proceedings, holding that the prolonged post-verdict proceedings resulted in a breach of the respondent’s right to be tried within a reasonable time under s. 11(b) of the Charter. The s. 11(b) claim focuses entirely on the post-verdict phase of the proceedings. There is no suggestion of any unreasonable delay prior to the verdict. [21] The post-verdict chronology is set out below: Date Event January 27, 2017 The trial judge finds the respondent guilty of various offences. The Crown indicates it may bring an application under Part XXIV of the Criminal Code for an order declaring the respondent a dangerous offender or a long-term offender. The Crown seeks an order for a psychiatric assessment under s. 752.1, as a first step to bringing an application under Part XXIV. The Crown indicates that it is gathering the necessary material. Defence counsel states that he will not bring any defence motions relevant to sentencing until the Crown application is resolved. The trial judge accepts this position. February 22, 2017 The Crown advises of the status of the voluminous material necessary for the application. The Crown suggests that the application could be argued on a date in May. May 18 and 19, 2017 The parties make submissions on the s. 752.1 application. June 8, 2017 The trial judge grants the s. 752.1 application and gives reasons. June 22, 2017 The trial judge reconsiders his decision on the s. 752.1 application based on a factual error in his reasons that counsel have brought to his attention. The trial judge dismisses the s. 752.1 application. This brings the Crown’s application to an end and also ends any possibility of a dangerous offender or long-term offender application. Counsel and the trial judge discuss the scheduling of the sentencing. The Crown suggests two days are needed. The defence suggests three days “out of an abundance of caution.” The defence also indicates that it will file material relating to the respondent’s treatment while in pre-sentence custody. The Crown requests a pre-sentence report and advises that six weeks are necessary to obtain the report. The Crown indicates it is available in early August or early September. The defence suggests late August. The parties eventually agree that the sentencing will proceed on September 27, 28, and 29. September 27, 2017 Between the scheduling of the sentencing hearing on June 22 and September 27, the date scheduled for the hearing, the defence has filed a wide-ranging constitutional challenge, targeting not only the respondent’s conditions while in pre-trial custody, but also government policies in respect of pre-trial custody. The defence has joined several other government actors in the proceeding. The defence has also served various broad-ranging “disclosure requests” in support of the constitutional challenge. The defence now anticipates that the motion will take six days. The Crown takes the position that the application record on the constitutional issues is incomplete. There are long discussions with respect to scheduling and, in particular, the order in which the various issues raised by the defence should be addressed. October 2017 – February 22, 2018 There are numerous days of evidence and argument on a variety of issues arising out of the constitutional challenge. The defence continues to serve new “disclosure requests”. February 22, 2018 On a motion brought by one of the responding government parties, the trial judge rules that he will only hear the constitutional challenge as it relates to the respondent and not as it relates to broader policy issues in respect of pre-trial detention. He also directs that the sentencing hearing should proceed as soon as practicable. March 23, 2018 The defence brings a motion for directions seeking clarification of whether it can seek Charter relief for the respondent based on the pre-sentence detention conditions. The trial judge indicates that the defence can seek a stay and raise other constitutional issues relevant to the respondent’s sentence. The defence asks for a 40-day adjournment to file the necessary material. In response to a question from the trial judge, the defence indicates that it does not anticipate a s. 11(b) motion. April 11, 2018 The defence advises the Crown that it will allege a s. 11(b) violation and seek a stay. May 2, 2018 – May 29, 2018 The defence intermittently files material relevant to the s. 11(b) motion, the constitutional challenge to s. 719(3.1) of the Criminal Code, and the motion for a stay based on the respondent’s pre-sentence detention conditions. June 1, 2018 The court hears evidence in respect of the motions brought by the defence and the s. 11(b) motion begins. June 5, 2018 The parties make submissions on the s. 11(b) motion. June 25, 2018 The trial judge finds a violation of the respondent’s right to be tried within a reasonable period of time and stays the proceedings. IV the trial judge’s ruling on the section 11(b) motion [22] The trial judge began by accepting that s. 11(b) applies to post-verdict delay: R. v. Charley, 2018 ONSC 3551, 414 C.R.R. (2d) 45, at paras. 2-3 (Charley (application)). He rejected the Crown’s argument that the post-verdict delay should be measured exclusively against the criteria set out in R. v. Morin, [1992] 1 S.C.R. 771. He agreed with the defence contention that the post-verdict delay should be assessed by using the Morin criteria as “tempered by” the analysis in Jordan: Charley (application), at paras. 6-9. [23] The trial judge calculated the delay from the laying of the charges to the verdict as 24½ months (January 15, 2015 – January 27, 2017). He then calculated the delay between conviction and the presumed date of sentence as 17 months (January 27, 2017 – June 25, 2018). The total delay was 41 months and 10 days. [24] The trial judge examined the 17-month post-verdict period in detail. Using concepts developed in Morin, he characterized parts of the 17 months as inherent time requirements, institutional delay, Crown delay, or defence delay. He held that of the 17 months, 4 months was attributable to the defence and 5 months was properly characterized as inherent time requirements, leaving 8 months, which the trial judge found could not “be justified” by the Crown. He added that 8-month post-verdict period to the 24 months pre-verdict, resulting in a total delay of 32 months: Charley (application), at paras. 24-80. [25] The trial judge next considered the 32-month delay by reference to the presumptive 30-month ceiling established in Jordan. He treated the 30-month ceiling as applicable to the entire time period between the laying of the charge and the sentencing date. As the total delay from charge to sentence exceeded 30 months, it was presumptively unreasonable unless the Crown could demonstrate otherwise: Charley (application), at para. 80. [26] In considering whether the Crown had rebutted the presumption of unreasonable delay, the trial judge considered any prejudice suffered by the respondent. He determined that the respondent was significantly prejudiced by the delay, as he was in custody throughout: Charley (application), at paras. 81-84. He also rejected the Crown’s submission that the transitional exception set down in Jordan should apply in this case. The trial judge observed that the post-verdict delay, which lay at the heart of the s. 11(b) claim, all occurred well after Jordan had been decided: Charley (application), at para. 86. [27] The trial judge concluded that the Crown could not rebut the presumption that the 32-month delay was unreasonable, compelling the conclusion that the respondent’s right to be tried within a reasonable time had been breached. The trial judge entered a permanent stay of proceedings. The Crown did not argue that there were any other remedies available under s. 24(1) of the Charter for a breach of s. 11(b). V the positions of the parties with respect to the section 11(b) claim (i) The Crown Position [28] Both the Crown and the respondent take different approaches on appeal to the application of s. 11(b) to post-verdict delay than they took at trial. The Crown acknowledges that the right to be tried within a reasonable time under s. 11(b) includes the right to be sentenced within a reasonable time: R. v. MacDougall, [1998] 3 S.C.R. 45, at paras. 10, 19-26. The Crown also accepts that the Morin analysis no longer has any role to play on a s. 11(b) motion, regardless of whether one is concerned with pre- or post-verdict delay. As counsel put it in his factum: Morin is dead. Today the Jordan framework governs the assessment of sentencing delay. [29] The Crown goes on, however, to argue that the presumptive ceiling, a central feature of the “Jordan framework” should not be used in the context of post-verdict delay. The Crown contends that, not only should the specific presumptive ceilings set down in Jordan (18 months or 30 months) not apply to post-verdict delay, there should be no point in time at which post-conviction delay becomes presumptively unreasonable. [30] The Crown submits that when the defence brings a s. 11(b) application based on post-verdict delay, the defence must show, first, that it took meaningful steps demonstrating a sustained effort to expedite the proceedings and, second, that the case took markedly longer than it reasonably should have. This two-prong test is the test applied in Jordan to allegations of pre-verdict delay that falls below the presumptive ceilings: Jordan, at paras. 82-91. In effect, the Crown argues that post-verdict delay can never be presumptively unreasonable and the defence must, in all cases, establish the unreasonableness of the delay according to the criteria described in Jordan that are applicable to delay below the presumptive ceiling. [31] The Crown submits that the respondent cannot show that he made a “sustained effort to expedite the proceedings”. To the contrary, the Crown submits that the unfocused and unprepared approach taken by the defence* to the constitutional claims and related motions caused virtually all of the delay after August 2017. Crown counsel contends that the record demonstrates that the defence, with the acquiescence of the trial judge, turned what should have been a two or three-day sentencing hearing into a seemingly ever-expanding inquiry into the policies and practices in remand centres. The inquiry came to include various federal and provincial ministries. The determination of an appropriate sentence for the respondent became an afterthought. (ii) The Respondent Position [32] Counsel for the respondent, like the Crown, accepts that the right guaranteed by s. 11(b) runs to the end of the sentencing phase of the criminal trial process. Further, counsel accepts that the analytical approach set down in Jordan, and not the Morin analysis, must be applied when assessing the constitutionality of post-verdict delay. Counsel also agrees that post-verdict delay should be assessed separately from pre-verdict delay for the purposes of s. 11(b). [33] Counsel for the respondent contends, however, that a ceiling beyond which delay is presumptively unreasonable is integral and essential to the functioning of the Jordan analysis. Counsel maintains that without a presumptive ceiling, both the need for added certainty in the application of s. 11(b), and the desire to shift the trial culture away from complacency – the two goals which drove the reformulation of the s. 11(b) analysis in Jordan – would be lost. Counsel submits that the several reasons identified in Jordan for the reformulation of the s. 11(b) test apply to delay at the post-verdict phase. [34] The respondent submits that post-verdict delay should have its own presumptive ceiling. Counsel argue for a 90-day presumptive ceiling that would be calculated from the date of verdict through to the date of sentencing. The 90-day presumptive ceiling would be subject to the same exceptions and qualifications as the Jordan pre-verdict presumptive ceilings. For example, as with pre-verdict delay, post-verdict delay caused by the defence would be deducted before applying the 90-day presumptive ceiling. [35] Counsel for the respondent concedes, correctly in my view, that on the facts of this case the delay in sentencing after August 2017, when the Crown was prepared to make sentencing submissions, should be characterized as defence delay and deducted from the overall time period. Counsel further submits, however, that the five-month delay between the findings of guilt in January 2017 and the dismissal of the s. 752.1 application in June 2017 should be treated as post-verdict delay for the purposes of s. 11(b). The respondent bases this submission on the contention that the Crown’s s. 752.1 application was devoid of merit and is properly viewed as frivolous for the purposes of considering any delay flowing from the application: see R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38. [36] Counsel submits that, as the five months exceeds the 90-day presumptive ceiling, the delay is presumptively unreasonable. The Crown cannot rebut that presumption on this record. Consequently, the proceedings were properly stayed by the trial judge. VI analysis of the section 11(b) claim [37] Section 11(b) reads: Any person charged with an offence has the right: (b) to be tried within a reasonable time. [38] The Supreme Court of Canada in MacDougall, at paras. 9-18, held that the phrase “charged with an offence” must be read as including both the pre-verdict and post-verdict phases of the trial proceedings. MacDougall further determined, at paras. 19-26, that the word “tried” in s. 11(b) includes the sentencing phase of the process.[1] [39] In Jordan, in a footnote, the majority referred to MacDougall, stating: This Court has held that s. 11(b) applies to sentencing proceedings. Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases. [Citations omitted.] [40] Jordan does not address post-verdict delay beyond the reference in the above-quoted footnote. This court has, without comment, examined post-Jordan s. 11(b) claims by reference to the time elapsed between the laying of the charge and the verdict, or anticipated date of verdict, and not by reference to the sentencing date: see R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. No. 513; R. v. Baron, 2017 ONCA 772, 356 C.C.C. (3d) 212; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135. In other cases, the court has assumed that the relevant time period runs through to sentence: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433; R. v. Gordon, 2017 ONCA 436, 137 O.R. (3d) 776; R. v. Kidd, 2016 ONCA 757. In at least two cases, the court has specifically indicated that the treatment of post-conviction delay after Jordan remains an open question: R. v. St. Amand, 2017 ONCA 913, 358 C.C.C. (3d) 226, at paras. 62-63; R. v. Mallozzi, 2017 ONCA 644, at para. 50, leave to appeal refused, [2017] S.C.C.A. No. 392; see also R. v. Stephan, 2017 ABCA 380, at paras. 149-152, rev’d on another ground, 2018 SCC 21, [2018] 1 S.C.R. 633.[2] [41] Counsel for the respondent submits that the footnote in Jordan does resolve the application of s. 11(b) to post-verdict delay in one respect. Counsel argues that the wording of the footnote indicates that the court was satisfied that post-verdict delay should be subject to a presumptive ceiling just like pre-verdict delay. The respondent contends that the court left open the question of what that presumptive ceiling should be and how it should be calculated. [42] There is some force to this submission. It is also arguable that in light of the majority’s consignment of its comment about post-verdict delay to a footnote, the majority did not intend to say anything binding about post-verdict delay. As I am satisfied, for reasons I will explain, that a presumptive ceiling should apply to post-verdict delay, I need not choose between these two interpretations of the footnote in Jordan. [43] As I see it, there are four possible approaches to post-verdict delay: [1] the delay should be analyzed in accordance with the criteria in Morin; [2] the delay should be analyzed in accordance with the principles set down in Jordan and the presumptive ceilings established in Jordan should include any post-verdict delay; [3] the delay should be analyzed in accordance with the principles in Jordan, but without regard to any presumptive ceiling; and [4] the delay should be analyzed in accordance with the principles in Jordan and subject to its own separate presumptive ceiling. [44] Option #3 is the position favoured by the Crown. The respondent argues for option #4. The trial judge’s reasons reflect a blending of options #1 and #2. I will address each approach in turn. (i) Option #1: Should the Morin Analysis Apply? [45] The trial judge applied the Morin factors, “tempered” by Jordan, in allocating responsibility for various parts of the 17 months between verdict and the assumed sentencing date. His analysis tracks closely that of the court in MacDougall, at paras. 44-59. [46] There is appellate authority supporting the application of the Morin criteria to delay between verdict and sentence in the post-Jordan era: see R. v. S.C.W., 2018 BCCA 346, 367 C.C.C. (3d) 518, at paras. 23, 34-35, leave to appeal refused, [2018] S.C.C.A. No. 452. Some trial courts have also favoured an approach which examines post-verdict delay through the Morin lens: e.g. see R. v. Dadmand, 2017 BCSC 1644, 396 C.R.R. (2d) 121, at paras. 49-58; R. v. Eid, 2017 ONSC 892, 375 C.R.R. (2d) 158, at paras. 6, 28-30. [47] I agree with counsel for the Crown and the respondent that the majority reasons in Jordan, at paras. 5, 29-38, 45, represent a considered and unqualified rejection of the Morin approach to s. 11(b) as unpredictable, unnecessarily complex, and too accepting of systemic inertia and institutional complacency. The concerns that drove the court in Jordan to depart from the Morin analysis apply to post-verdict delay. Nothing about the post-verdict phase of the process makes the application of Morin any less unpredictable or complex. Similarly, the “culture of complacency” identified in Jordan is not limited to the pre-verdict stage of the criminal process. Clearly, the community’s interest in a timely completion of that process applies to the sentencing phase as well. A timely verdict does little for the community’s confidence in the justice system if that verdict is not followed by a timely disposition. Indeed, the Criminal Code requires that sentences be imposed “as soon as practicable”: Criminal Code, R.S.C., 1985, c. C-46, s. 720(1). [48] I can find no logical or doctrinal justification for analyzing pre- and post-verdict delay in fundamentally different ways. Apart from transitional cases in which at least some of the delay occurred before the release of Jordan in July 2016, the Morin analysis has no place pre- or post-verdict. (ii) Option #2: Should the Jordan Presumptive Ceilings Apply to Post-Verdict Delay? [49] The trial judge held that the presumptive ceilings set down in Jordan included post-verdict delay. He offered no explanation for that holding. This court has also assumed in some cases, without explanation, that the 18 and 30-month ceilings set in Jordan include the post-verdict phase of the process. In those cases, however, the court determined that there was no breach of s. 11(b): see Kidd; Coulter; and Gordon. [50] Neither the Crown, nor the respondent, support the position that Jordan intended the presumptive ceilings to include the post-verdict period between conviction and sentence. Nor do I. [51] The ratio in Jordan speaks explicitly to pre-trial delay: Jordan, at paras. 2-3. The facts of Jordan also stand against treating post-verdict delay as part of the relevant time period for the purposes of determining whether the delay exceeds the presumptive ceiling. In Jordan, the delay was calculated from the laying of the charge to the date of conviction: Jordan, at paras. 7-12. The four-month delay between the verdict and the sentence was not even mentioned in the s. 11(b) analysis, much less taken into account in fixing the 30-month presumptive ceiling. Similarly, in R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, a companion case to Jordan, total delay was calculated by reference to the time from the laying of the charge to the verdict without regard to the additional time between verdict and sentencing. [52] Given the centrality of the presumptive ceilings to the reformulation of the s. 11(b) analysis accomplished by Jordan, the majority’s determination of the end point for the purposes of calculating the relevant time period must be regarded as a carefully considered position. If the court had intended that post-verdict delay should be taken into account when determining whether the presumptive ceilings had been exceeded, the court would not have fixed those presumptive ceilings by reference to the date of verdict. [53] The impact of including post-verdict delay when assessing whether the case has exceeded the presumptive limits is significant. In many criminal cases, particularly the more serious cases, sentencing will, of necessity, take time, sometimes a matter of months. If, for the purposes of the presumptive ceilings, the constitutional clock runs through to sentencing, what was described in Jordan as an 18 or 30-month ceiling will in reality be a significantly lower ceiling. Treating the presumptive ceilings as operating through to sentencing substantially redraws the line drawn in Jordan between presumptively reasonable delay and presumptively unconstitutional delay. [54] Trial courts have also pointed out the practical problem with treating the presumptive ceilings as including post-verdict delay. The vast majority of s. 11(b) applications are brought prior to verdict.[3] While the anticipated date of verdict can be determined with reasonable accuracy, any assessment of the additional time beyond verdict needed to complete sentence requires an assumption of guilt and pure speculation. Furthermore, if the court is expected to make assumptions about delay between verdict and sentence, the court must arguably entertain submissions about the nature of the sentencing proceeding which might be held, including the kind of evidence that the Crown might call. This kind of speculation leads down roads that could be significantly prejudicial to an accused who, at the time of the application had not been tried and was presumed innocent: see R. v. J.M., 2017 ONCJ 4, 344 C.C.C. (3d) 217, at paras. 34-42. [55] The extension of the presumptive ceilings from Jordan to include the time period between verdict and sentence also ignores the different impact that pre- and post-verdict delay have on the rights of an accused. Prior to verdict, an accused is presumed innocent and has a constitutional right to make full answer and defence in response to the charge. Delays prior to verdict must be assessed in light of the negative impact that inordinate delay has on those rights. [56] Post-verdict, the accused is no longer presumed innocent. The right to make full answer and defence is spent, subject to the right to address sentence. While the accused clearly retains significant liberty and security of the person interests post-verdict, and those interests can be compromised by delay, they are qualitatively different than the interests that exist pre-verdict: see MacDougall, at paras. 32-37. The change in the accused’s status flowing from the verdict and the impact that change has on the accused’s protected interests justify a resetting of the constitutional clock for the purposes of fixing the presumptive ceiling applicable to post-verdict proceedings.[4] [57] Several appellate courts have held that the presumptive ceilings in Jordan run from the laying of the charge to the verdict or anticipated date of the verdict and not to the date of sentence: see S.C.W., at para. 34; R. v. Rhode, 2019 SKCA 17, 372 C.C.C. (3d) 442, at para. 43, leave to appeal refused, [2019] S.C.C.A. No. 112; R. v. Lecompte, 2018 NBCA 33, 362 C.C.C. (3d) 354 at para. 20; R. v. Rice, 2018 QCCA 198, 44 C.R. (7th) 83 at para. 41. Many trial courts have also determined that the presumptive ceilings run only to verdict or date of anticipated verdict: see Dadmand, at para. 28; R. v. Patel, 2017 ONSC 5827, 399 C.R.R. (2d) 327, at paras. 26-35; R. v. Pelletier, 2016 BCSC 2496, 136 W.C.B. (2d) 264, at paras. 32-34; R. v. Tsega, 2017 ONSC 3090, at paras. 6-14, aff’d on the s. 11(b) issue without reference to this point, 2019 ONCA 111, 144 O.R. (3d) 561, leave to appeal requested, [2019] S.C.C.A. No. 69; R. v. R.M.P., 2018 ONSC 4117, 148 W.C.B. (2d) 573, at paras. 28-38; R. v. Crant, 2018 ONSC 1479; R. v. Haniffa, 2017 ONCJ 781, at paras. 3-5; R. v. Agbeyaka, [2017] O.J. No. 6896, at paras. 89-90; R. v. Akumu, 2017 BCSC 896, at para. 36, leave to appeal to S.C.C. refused, 38333 (February 8, 2019). [58] I join company with all of the authorities set out above. The point at which post-verdict delay becomes presumptively unreasonable should be measured strictly by reference to the period of post-verdict delay, and not by reference to the pre-verdict presumptive ceilings designed to distinguish between tolerable and unconstitutional delay at the pre-verdict stage. (iii) Option #3: Should the Jordan Principles Apply, but Without a Presumptive Ceiling? [59] On this approach, favoured by the Crown, post-verdict delay is assessed separately from pre-verdict delay. It is also assessed according to Jordan principles, but without any presumptive ceiling. Instead of a presumptive ceiling, the onus is always on the defence to establish a breach of s. 11(b). To satisfy that onus, the defence must show first that it took meaningful steps that demonstrate a sustained effort to expedite the sentencing proceedings and, second, that the sentencing proceedings, despite those efforts, took markedly longer than they reasonably should have. This is the test used in Jordan for the assessment of pre-verdict delay that falls below the presumptive ceiling: Jordan, at para. 82. [60] One need only consider how the proposed analysis favoured by the Crown would operate in practice to understand why this approach is inconsistent with the spirit and rationale of Jordan. On this approach, the onus would be on the accused in all cases to take meaningful steps that demonstrate a sustained effort to expedite the sentencing proceedings. If an accused did not take those steps, nothing done or not done by the Crown or the court would result in a breach of s. 11(b). In other words, absent a “sustained effort” by the defence to move the matter to sentence, there could be no obligation on the Crown or the court to do anything to move the matter forward, regardless of the length of the post-verdict delay. This approach would not only reinforce the culture of complacency Jordan sought to displace, it would raise the criminal justice system’s tolerance for that complacency to new heights at the post-verdict stage. [61] The fundamental problem with the Crown’s position is that, while it purports to apply the Jordan analysis to post-verdict delay, it removes the “heart” of that analysis when it eliminates presumptive ceilings: Jordan, at paras. 5, 46. Without those ceilings, the Jordan analysis becomes, like the Morin analysis, a method of measuring case-specific delay from an after-the-fact perspective. Stripped of the presumptive ceilings, Jordan becomes Morin, except that Jordan places a significantly higher burden of proof on the defence to demonstrate unreasonable delay than does Morin. [62] By removing the presumptive ceilings and exclusively using the test for delay articulated in Jordan for cases that fell below the presumptive ceilings, the Crown proposes a test that has no regard to the factors that have always gone into the analysis of delay for the purposes of s. 11(b). For example, institutional delay, a specific factor considered in Morin, and a factor reflected by the presumptive ceilings in Jordan, disappears from the s. 11(b) analysis proposed by the Crown, unless the defence first shows that it took “meaningful steps” that demonstrate “a sustained effort to expedite the proceedings”. [63] The majority in Jordan made it clear that the test it proposed for measuring delay below the presumptive ceiling, which placed a heavy onus of the defence, was warranted only because it worked in tandem with the presumption of unreasonableness created when the presumptive ceilings were reached. The majority explained, at para. 83: We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases. [64] The heavy burden placed on the defence to demonstrate that the delay is unreasonable cannot be justified, absent presumptive ceilings which shift the onus to the Crown at a fixed point in time. [65] The Crown argues that the sentencing phase of the trial process is highly individualized and therefore not amenable to presumptive guidelines. No doubt, fixing an appropriate sentence is a highly personalized assessment. The court must decide on the fit sentence for the specific offender in the specific circumstances. However, while the assessment is highly individualized, the process is at least as standardized as the trial process. Indeed, I would suggest that the sentencing process is, in many ways, more predictable and controllable than the pre-verdict stage of the process. [66] Sentencing proceedings are almost inevitably much shorter than trial proceedings. This makes them easier to schedule and complete. They normally involve fewer and simpler evidentiary and legal issues. At the sentencing phase, a trial judge can be more proactive in requiring counsel, especially defence counsel, to make the kinds of disclosures with respect to issues and evidence that tend to facilitate hearings. I see nothing inherent in the nature of sentencing that makes a presumptive ceiling impractical or unworkable. [67] The Crown next argues that there should be no ceiling in respect of post-verdict delay because sentencing, properly done, requires time. Counsel submits that a sentence which considers all of the relevant factors must be preferred over a sentence that is “hastily” imposed to comply with a preordained presumptive ceiling. [68] This is not an argument against presumptive ceilings. It is an argument for presumptive ceilings that are reasonable and allow the parties sufficient time to take the appropriate steps that are necessary to arrive at a fit sentence. [69] The Crown also argues that presumptive ceilings applicable to sentencing could not take into account those cases in which time-consuming, but necessary, steps must be taken to arrive at a fit sentence. The Crown points out that often these additional steps enure to the benefit of the accused. [70] This submission assumes that the s. 11(b) analysis in Jordan amounts to a mechanical calculation based only on the application of the presumptive ceilings. The Jordan analysis is more flexible than that. Considerations of defence waiver, defence delay, and exceptional circumstances may operate to render a pre-verdict delay that is above the presumptive ceiling acceptable in the circumstances: Jordan, at para. 58. Similar flexibility would be necessary in any presumptive ceilings applicable to the sentencing phase. For example, if the defence requested an adjournment to allow the accused to take certain rehabilitative steps before sentencing, and the length of the adjournment would necessarily take the proceedings beyond the presumptive ceiling, I would think the request for that adjournment would be treated as an implicit waiver of any s. 11(b) claim based on the delay flowing from that requested adjournment. [71] The Crown next submits that presumptive ceilings are inappropriate at the sentencing phase because the presumption of prejudice underlying the creation of those ceilings for the purposes of the pre-verdict stage does not hold true at the sentencing phase. I agree that the presumption of prejudice is attenuated post-verdict: see MacDougall, at para. 32. However, prejudice does not disappear. Persons awaiting sentence suffer various forms of prejudice ranging from the psychological distress brought on by the uncertainty of the sentence to be imposed to the very real physical stress of pre-sentence incarceration, sometimes in conditions that are worse than those experienced post-sentence. [72] I accept that the nature of the post-verdict prejudice is different. This difference should be taken into account in fixing the presumptive ceilings for the sentencing phase of the process. The difference does not, however, justify jettisoning presumptive ceilings as part of the post-Jordan analysis of sentencing delay. [73] Finally, the Crown submits that the nature of a sentencing proceeding is such that the Crown is very much in the dark as to what may or may not occur at sentencing. Counsel submits that it is unrealistic to place the responsibility on the Crown to move the sentencing proceeding forward when the Crown has little ability to control that process. [74] I take a different view of how the sentencing process should work post-Jordan. In my view, the trial judge can and should control that process. A trial judge can, very early in the sentencing process, require both sides to declare their intentions with respect to sentence, including identifying the issues to be raised, the evidence to be called, and the positions to be taken. Realistic timelines for the exchange of material and oral argument should be drawn. Those timelines must recognize both the statutory requirement to sentence “as soon as practicable” and the presumptive ceilings. The Crown and the defence have an obligation to cooperate in bringing the matter on for sentencing. [75] At sentencing, an accused is no longer presumed innocent. Nor, in my view, does the right to silence permit the defence to withhold disclosure of what it proposes to do on sentence. A trial judge’s power to control trial proceedings includes the power to require counsel on both sides to lay out their “game plan” for sentencing very early in the sentencing process. That “game plan” should include a realistic estimate as to how much court time will be needed to deal with sentencing. If dates are set based on those estimates, counsel must expect they will be required to adhere to them. In taking firm but fair control over the sentencing process, the trial judge can invoke the powerful language in Jordan, to the effect that all participants in the criminal justice system have an obligation to work toward achieving prompt justice: Jordan, at paras. 5, 137-139. [76] In my view, a Jordan analysis without presumptive ceilings is not a Jordan analysis. I am not persuaded by the Crown’s arguments that the sentencing process is sufficiently different than the trial process to warrant the abandonment of such a central feature of the Jordan analysis. I would not adopt option #3. (iv) Option #4: The Jordan Principles Should Apply with a Separate Presumptive Ceiling [77] This is the option I would choose. The rationale that drove the court in Jordan to redo the s. 11(b) analysis as it pertained to pre-verdict delay applies with equal force to post-verdict delay. In Jordan, the court described presumptive ceilings as giving “meaningful direction” to the Crown as to the nature of its s. 11(b) obligation. Presumptive ceilings provide a benchmark against which the Crown can measure the progress of its case and anticipate potential s. 11(b) problems. A presumptive ceiling in respect of sentencing proceedings would serve the same guiding function: see Jordan, at para. 50. [78] The majority in Jordan also described presumptive ceilings as enhancing “analytical simplicity” when addressing s. 11(b) claims and as fostering “constructive incentives” in reacting to potential delay problems: Jordan, at paras. 51-52. The same simplicity and incentives are brought to the sentencing phase by a presumptive ceiling: see D. Spencer, “Extending Jordan to Consider Verdict and Sentencing Delays” (2019) 50 C.R. (7th) 30, at p. 40. [79] The strong case made by the majority in Jordan for the reformulation of the s. 11(b) analysis as applied to pre-verdict delay is equally convincing in the context of post-verdict delay. In any event, I would think that absent some compelling reason for taking a different approach to post-verdict delay, doctrinal consistency would dictate a common analytical approach to the measurement for constitutional purposes of delay before and after a verdict. As outlined above, none of the reasons offered by the Crown for taking a different approach to delay post-verdict are convincing. [80] Before addressing the quantum of the presumptive ceiling applicable to post-verdict delay, I would make two additional points. First, there is no reason to differentiate between proceedings in the provincial court and the Superior Court for the purposes of fixing the presumptive ceiling to the sentencing phase. Whether the trial took place entirely in the provincial court, or passed through the provincial court to the Superior Court, should have no relevance to the point at which delay in moving the case from verdict to sentence should become presumptively unreasonable. [81] Nor, in my view, is there any connection between the quantifying of the appropriate presumptive ceiling for pre-verdict delay and the fixing of an appropriate ceiling for post-verdict delay. The time at which delay should become presumptively unreasonable for the purpose of sentence should not be influenced by the time taken to reach the verdict. In applying presumptive ceilings, I would keep the pre-verdict and post-verdict parts of the process separate from each other. [82] Although I would treat pre- and post-verdict delay separately for the purpose of the presumptive ceilings, pre-verdict delay takes on a somewhat different role when the defence relies on post-verdict delay that is below the presumptive ceiling to establish a breach of s. 11(b). In that case, the court can look to the length of the proceedings prior to verdict as a factor in determining whether the defence has established unreasonable delay post-verdict. For example, the defence in attempting to show that the case took “markedly” longer than it reasonably should have, could argue that the post-verdict delay, although below the presumptive ceiling, constitutes unreasonable delay in the context of very significant pre-verdict delay. [83] The case for having a presumptive ceiling is a strong one. Fixing that ceiling at a specific number is more problematic. Setting the presumptive ceiling for post-verdict delay presents the most difficult issue on this appeal. [84] The parties did not provide empirical data referable to the time between verdict and sentencing, in the provincial court or in the Superior Court. Informal inquiries by the court indicated that the data was not available in a usable form. A review of the chronology of cases from this court’s recent inventory provided little insight. The court was left to rely on its own experience, the submissions of experienced counsel, a review of the reported cases, and comments about local conditions made by trial judges in some of the reported cases. [85] Fixing a presumptive ceiling based on the information available to this court gives me pause.[5] Ultimately, I am prepared to do so because, in my view, sentencing does tend to run to form, except in situations in which there are readily identifiable exceptional circumstances. The flexibility built into the Jordan approach to presumptive ceilings allows a court to properly deal with those cases that involve exceptional circumstances. I also doubt that any data available would provide a more reliable indicator of the appropriate presumptive ceiling. [86] In fixing a presumptive ceiling, I bear in mind that the presumptive ceiling is not intended to identify the amount of time it should take to move the case from verdict to sentence. As stated by the majority in Jordan, at para. 56: We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached. [87] I would set the presumptive ceiling for post-verdict delay at five months. In doing so, I stress that five months is not the norm, and should not be allowed to become the norm. Instead, five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b). The onus falls to the Crown to justify the delay. [88] I have already referred to the important role of the trial judge in ensuring that the sentencing process proceeds in a timely fashion. In most cases, sentencing will be straightforward and will be completed in less than a day of court time. By exchanging information and positions in respect of sentence, counsel should be able to expedite the proceedings. In many cases, a pre-sentence report will be necessary. There may also be evidence from victims or character witnesses. That evidence should be quite straightforward. In “routine” sentencing cases, the trial judge should set a date for sentencing that is well-below the presumptive ceiling. [89] Counsel should provide opposing counsel with material to be relied on well before the scheduled sentencing date. Any unexpected problems with holding and completing the sentencing on the selected date should be brought to the attention of the court and opposing counsel immediately, so that steps can be taken to minimize the delay. Crown counsel who do not fully engage in this cooperative process will find it difficult to justify any delay above the presumptive ceiling: Jordan, at para. 70. Defence counsel who fail in their obligation to participate in the appropriate management of the sentencing process may find causally related delays attributed to the defence or viewed as implicitly waived by the defence conduct. [90] In cases in which the sentencing proceeding will be complex, the parties should be required very soon after the verdict to make the trial judge aware of the issues that will be raised on sentencing. In doing so, counsel must be prepared to discuss those issues and their potential complexities in some detail and with some precision. Vague references to evidence that might or might not be called in respect of undefined issues are not good enough and should not be accepted by the trial judge. All parties are responsible for developing a plan that will allow the sentencing to proceed expeditiously. [91] When a trial judge has been alerted to complex issues that will be raised on sentence, the trial judge should set an appropriate schedule with counsel to address those issues in a timely and efficient manner. That schedule must keep the presumptive ceiling firmly in mind. If it appears to the trial judge that the proposed plans of counsel could run up against the presumptive ceiling, the trial judge should raise that issue with counsel at the scheduling meeting. Counsel should be asked to specifically address issues such as waiver and exceptional circumstances considered in the context of their proposed plans with respect to sentencing. Potential s. 11(b) problems should be confronted and addressed before they become s. 11(b) violations. [92] In my view, the trial judge is entitled to expect a high level of cooperation between counsel on sentencing. For example, the impact of pre-trial custody conditions on sentence has become a commonly litigated matter. Counsel should be well-aware of the kind of material that should be put before the trial judge in support of a claim that the sentence should be mitigated to reflect those pre-trial conditions. Defence counsel should be able to identify, with particularity, the material needed. The trial judge is entitled to look to the Crown to cooperate with the defence in obtaining that material, especially if it is in the hands of government agencies. [93] This case provides a good example of what cannot be allowed to happen in respect of sentencing proceedings that have some complexity. Defence counsel’s position that he should not be required to take any steps to prepare his various motions and arguments on sentencing until the Crown’s s. 752.1 application was resolved should have been rejected. There is no reason why the defence could not have prepared and filed the material relating to the appellant’s pre-trial custody at the same time as the Crown was preparing its s. 752.1 application. Counsel’s suggestion that the respondent’s right to silence entitled him to simply await the resolution of the s. 752.1 application was untenable. Armed with a five-month presumptive ceiling and the recognition in Jordan that all involved have an obligation to move the matter forward, a trial judge could, absent a waiver of delay, require defence counsel to move forward immediately after verdict with the various issues it proposed to raise on sentencing. [94] Appropriate management of the sentencing process by the trial judge would also avoid the kind of rudderless, ever-expanding arguments brought by the defence in this case. With respect, it should have been obvious, very soon after the defence served its first wave of constitutional material in the summer of 2017, that the issues the defence proposed to raise went far beyond those that were relevant to determining the fit sentence for the respondent. The trial judge did eventually limit the scope of the defence motions on sentencing. He did so only after a formal motion brought by one of the government respondents, and some seven months after the defence motions had begun. By then, numerous court days had been used up, much of the time spent inquiring into matters that had nothing to do with the appropriate sentence for the respondent. Hopefully, a presumptive ceiling applicable to post-verdict delay will alert everyone to the need to focus on the issues relevant to the imposition of a fit sentence. A presumptive ceiling should encourage trial judges to intervene when necessary to keep sentencing proceedings on track. (v) Application of the Jordan Analysis to this Case [95] The trial judge found the respondent guilty of various charges on January 27, 2017. The respondent would have been sentenced on June 25, 2018, had the proceedings not been stayed. For the purposes of the Jordan analysis, the total delay post-verdict is 17 months. After the Crown’s s. 752.1 application was dismissed in June 2017, the Crown was prepared to speak to sentence in early-August 2017. In oral argument, counsel for the respondent acknowledged that the period from August 2017 until the convictions were stayed in 2018 was consumed with defence constitutional applications and motions, which in the circumstances are properly characterized as defence delay for the purposes of the Jordan analysis. I fully agree with this concession. Consequently, the net delay is seven months (late-January 2017 – August 2017). [96] The net delay of seven months exceeds the presumptive ceiling of five months that I would hold as applicable to post-verdict proceedings. However, five of the seven months was occupied with the Crown’s application under s. 752.1 for an order directing a psychiatric assessment of the respondent. [97] The s. 752.1 application could only be made after the guilty verdicts. It required the Crown to gather a large amount of material from a variety of sources. The Crown began to assemble the material well before the verdict. Some of the material could not, however, be obtained until after the verdicts. In addition to assembling the material, the Crown had to prepare an application record, serve it, and prepare for argument. The defence also needed time to digest the information once it was provided by the Crown and prepare a response. [98] A s. 752.1 application is the Crown’s first step in the bringing of a dangerous offender or long-term offender application under Part XXIV of the Criminal Code. Part XXIV proceedings are, of necessity, taken after verdict. In my view, those proceedings are properly characterized as exceptional in the sense that they are “reasonably unavoidable” once the Crown has determined that the circumstances dictate that a Part XXIV designation should be sought: see Jordan, at paras. 69-72; Cody, at paras. 46-48. However, even when delay is attributable to a reasonably unavoidable circumstance or event, the Crown has an obligation to mitigate any resulting delay: Cody, at para. 48. [99] In this case, the Crown could have been somewhat more proactive in gathering the necessary material before the verdicts. The Crown’s conduct in this regard cannot, however, be characterized as unreasonable. The Crown acted responsibly: Cody, at para. 54; Tsega, at para. 82. [100] I would treat the five months between the verdicts and the dismissal of the s. 752.1 application (late-January 2017 – June 2017) as attributable to an exceptional circumstance, that is the commencement of a Part XXIV proceeding. In my view, the s. 752.1 application constitutes a discrete event in the context of that exceptional circumstance. The five months required to bring and resolve the s. 752.1 application should be deducted from post-verdict delay before applying the five-month presumptive ceiling: Jordan, at paras. 48, 75; Coulter, at para. 38. [101] I do not understand counsel for the respondent to suggest that the bringing of a s. 752.1 application does not qualify as an exceptional circumstance, for the purpose of the Jordan analysis. Counsel submits, however, that this application had no chance of success and is properly characterized as frivolous. Relying on Cody, at paras. 30-35, counsel contends that the time spent by the Crown in advancing a frivolous application cannot be excused or justified as an exceptional circumstance. [102] I accept that if the s. 752.1 application is properly characterized as frivolous, the Crown cannot rely on the time needed to make and dispose of that application as an exceptional circumstance. I do not, however, agree that the Crown’s application was frivolous. The application was arguable. Indeed, it initially succeeded. The trial judge reconsidered and reversed his decision based on a factual error concerning one entry in the respondent’s criminal record. The trial judge’s reasons tell me that this was a close call. [103] Counsel for the respondent’s argument that the application was frivolous rests on the assertion that because the test for granting an assessment order under s. 752.1 is a low one, any application that fails to meet that test must be frivolous. In judging merit, one looks not at the severity of the test for granting the relief sought, but rather at how close the applicant came to meeting the test. If the application is arguable on the test to be applied, the application cannot be branded as frivolous, regardless of how difficult or easy the test is to meet. [104] In summary, I would treat the initiation of a proceeding under Part XXIV of the Criminal Code as an exceptional circumstance. I would also treat the s. 752.1 application as a discrete event in that process. I would deduct five months from the seven-month delay: see Coulter, at para. 38. The remaining two-month delay falls below the five-month presumptive ceiling I would set. It is also below the three-month presumptive ceiling suggested by the respondent. [105] I make one further observation with respect to the application of the Jordan analysis to post-verdict delay. Jordan recognized that the new framework it put in place should be applied somewhat differently in respect of cases that were in the system before Jordan was released: see Jordan, at paras. 95-100. The majority described transitional exceptional circumstances that could, in some situations, justify delay above the presumptive ceiling. I would take the same approach in applying the presumptive ceiling applicable to post-verdict delay set down in this case. There is, however, no need to consider how the transitional exception would apply on the facts of this case, as the post-verdict delay falls under the presumptive ceiling. There was no s. 11(b) breach. (vi) The Appropriate Remedy for a Section 11(b) Breach Post-Verdict [106] As I find no breach of s. 11(b), I do not reach the question of the appropriate remedy for that breach. However, as counsel for the Crown has argued that this court should recognize that remedies other than a stay of proceedings are available when a s. 11(b) breach arises out of post-verdict delay, I will briefly address that submission. [107] It is settled law, at least in respect of s. 11(b) breaches that occur prior to verdict, that a stay of proceedings is the only available remedy: R. v. Rahey, [1987] 1 S.C.R. 588, 78 N.S.R. (2d) 183, per Lamer J., at pp. 614-615, per Le Dain J., at pp. 617-618, per Wilson J., at p. 619; R. v. Askov, [1990] 2 S.C.R. 1199, 75 O.R. (2d) 673, at pp. 1240-1241. In his factum, Crown counsel suggests that Rahey and the subsequent line of authority from the Supreme Court of Canada has been heavily criticized[6] and is ripe for reconsideration after Jordan. Crown counsel, however, does not suggest that this court should reconsider the ratio from Rahey in this case. Instead, counsel focuses on the appropriate remedy for a breach of s. 11(b) caused by post-verdict delay. He submits that this issue was not decided by Rahey and that this court is free to exercise the full remedial versatility of s. 24(1) of the Charter and develop a remedy that is “appropriate and just in all of the circumstances”. [108] Neither Rahey nor any of the subsequent cases specifically address the appropriate remedy for post-verdict delay. In Betterman v. Montana, 578 U.S. ___, 136 S. Ct. 1609, at p. 1615, Ginsburg J., for the court, described the possibility of vacating a valid conviction based on sentencing delay as “an unjustified windfall” for the accused. That seems to me to be an accurate description. [109] The analysis offered in Rahey to support the holding that a stay of proceedings was the required remedy for a s. 11(b) breach suggests that the remedy for a post-verdict s. 11(b) breach should target sentence and not conviction. In Rahey, at p. 614, Lamer J., for himself and Dickson C.J.C., two of the six-person majority, explained that a stay of proceedings was the only appropriate remedy for a s. 11(b) breach for jurisdictional reasons: Now to turn to the remedy. Again in Mills, I have explained why a stay is the minimal remedy. If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in violation of that right. After the passage of an unreasonable period of time, no trial, not even the fairest possible trial, is permissible. To allow a trial to proceed after such a finding would be to participate in a further violation of the Charter. [110] Applying the jurisdictional rationale advanced by Lamer J., it could be argued that post-verdict delay should impact only the jurisdiction to sentence. [111] Wilson and Le Dain JJ., writing separately for the other four members of the Rahey majority, did not embrace Lamer J.’s jurisdictional explanation for the need to impose a stay in all cases involving a breach of s. 11(b). They did, however, agree that a stay was the only appropriate remedy. For example, Wilson J. said, at p. 619: What the court cannot do is find that his right has been violated, i.e., that the reasonable time has already expired, and still press him on to trial. For to do so is to deprive him of his right under s. 11(b) in the pretext of granting him a remedy for its violation. [112] The language of Wilson J., like the reasons of Lamer J., justifies a stay of proceedings on the basis that the breach precludes further prosecution. The stay does not undo what has happened, but prohibits the prosecution from going further. [113] This court has, in the exercise of its appellate powers, stayed the enforcement of a part of a sentence when it would be inappropriate to reincarcerate an offender: see R. v. Plange, 2019 ONCA 646, at para. 48. The jurisprudence also recognizes that Charter breaches may mitigate sentence, either through a s. 24(1) Charter remedy, or by the application of the generally applicable principles of sentencing: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 56-64. [114] It is arguable that the remedy for post-verdict delay should not affect the conviction, but should be based on a determination of the “appropriate and just” remedy as it relates to sentencing. Appropriate remedies might include a stay of the sentencing, or a stay of the enforcement of all or part of the sentence imposed. I leave this issue to a case in which the court has found a breach of s. 11(b) post-verdict. VII what order should this court make? [115] This Crown appeal from the stay of proceedings ordered by the trial judge was brought pursuant to s. 676(1)(c). This court’s remedial powers when it allows a Crown appeal are found in s. 686(4). Although s. 686(4) does not refer to appeals from a stay of proceedings, appellate courts, including this one, have held that the remedial powers in s. 686(4) are applicable to Crown appeals from a stay of proceedings: see R. v. Allen (1996), 110 C.C.C. (3d) 331, at p. 353 (Ont. C.A.), aff’d [1997] 3 S.C.R. 700; R. v. Yelle, 2006 ABCA 276, 213 C.C.C. (3d) 20, at paras. 11-15. [116] In cases tried by a judge alone (like this one), this court, in allowing a Crown appeal pursuant to s. 686(4)(b), may set aside the acquittal [stay] and: · order a new trial (s. 686(4)(b)(i)); or · enter a verdict of guilty with respect to the offence that the accused should have been found guilty of, and either pass sentence or remit the matter to the trial court for sentence (s. 686(4)(b)(ii)). [117] Section 686(4)(b)(ii) allows the court to “enter a verdict of guilty”. That language is awkward when the Crown appeal is not from an acquittal, but instead from an order staying proceedings after a finding of guilt. Just as with the reference to “acquittal” in s. 686(4) must be read purposively to include orders imposing permanent stays of proceedings, the phrase “enter a verdict of guilty” should be read to include making an order that sets aside a permanent stay and affirms a finding of guilt made in the trial court: see R. v. Pearson, [1998] 3 S.C.R. 620, at para. 16. [118] In a case like this, when this court is satisfied that an order staying the proceedings must be set aside and the trial judge has made findings of guilt, it is necessary for this court to examine the reasons for those findings before deciding the appropriate order under s. 686(4)(b). If this court is satisfied that the trial judge’s reasons for his findings of guilt reveal reversible error, the court should not affirm findings of guilt based on those reasons. Consequently, it can neither proceed to sentence, nor remit the matter to the trial judge for sentencing. If the reasons on which the findings of guilty are based reveal reversible error, I think the only appropriate remedy is an order directing a new trial under s. 686(4)(b)(i). [119] Consequently, I would hold that the respondent is entitled to challenge the trial judge’s reasons for finding him guilty on the charges. He does so, not by way of a “conviction appeal” as it was characterized by the Crown, but as an argument directed at the manner in which this court should exercise its remedial powers under s. 686(4)(b). [120] Counsel for the respondent submits that the trial judge made several errors in his analysis of the evidence. The errors include misapprehension of material parts of the evidence given by different witnesses and the failure to adequately assess the credibility of Mr. Gordon, the key Crown witness. [121] Mr. Campbell, with his usual skill and attention to detail, has carefully mustered the evidence and examined the reasons. He makes what appears, on its face, to be an overwhelming case against the respondent, seem less compelling. He does not, however, demonstrate any error by the trial judge. He essentially invites this court to retry the case. [122] I do not propose to review each of the arguments made by counsel. They essentially challenge the manner in which the trial judge assessed the evidence. They certainly demonstrate that the trial judge could have looked at some of the evidence differently than he did. That is not, however, reversible error. [123] Two examples of counsel’s submissions challenging the trial judge’s treatment of the evidence will suffice. Counsel carefully examined the physical evidence which the trial judge had said supported, to a significant degree, Mr. Gordon’s credibility. Counsel makes a case for viewing that evidence as less supportive of Mr. Gordon’s credibility than did the trial judge. That submission, however, goes to the weight assigned to the evidence, territory reserved to the trial judge. [124] The trial judge also relied on the evidence of Ms. Sandra Jonathan to a significant extent. Ms. Jonathan was in the store when the robbery started, fled the store, walked across the street, and called 911 while watching the store. The Crown relied on her evidence to refute the respondent’s evidence about his movements after the robbery started. [125] Counsel carefully dissected Ms. Jonathan’s evidence and argued that, on her evidence, it was possible that she did not see any of the relevant movements made by the respondent. He submits that the trial judge misapprehended the evidence in coming to a different assessment. [126] Assuming it is possible to read Ms. Jonathan’s evidence in a way that would explain why she saw none of the respondent’s movements to which he testified, that does not mean the trial judge was obligated to take that view of their evidence. He took a different view, noting that it would “be a rather large coincidence” if Ms. Jonathan, while watching the store, had missed all of the movements described by the respondent. It was open to the trial judge to take that view of the evidence. [127] There is no basis upon which to interfere with the trial judge’s findings of guilt. I would not order a new trial. VIII conclusion [128] In summary, I would extend the analysis in Jordan to post-verdict delay. Post-verdict delay should be subject to a five-month presumptive ceiling that would operate in the same manner, and with the same qualifications, as the presumptive ceilings applicable to pre-verdict delay set down in Jordan. The post-verdict delay in this case did not exceed the five-month presumptive ceiling. There is no suggestion that the delay, even if below the presumptive ceiling, was nonetheless unreasonable in the circumstances. [129] I would allow the Crown appeal and set aside the permanent stay entered by the trial judge. The trial judge found the respondent guilty of armed robbery, aggravated assault, and possession of a loaded firearm: see R. v. Charley, 2017 ONSC 605, at para. 99. I would affirm the findings of guilt on each of those charges and remit the matter to the trial court for sentencing on those charges. Released: “DD” “SEP 19 2019” “Doherty J.A.” “I agree M.L. Benotto J.A.” “I agree Grant Huscroft J.A.” * Neither Mr. Campbell, nor Mr. Krongold, acted for the respondent at trial. [1] In MacDougall, at para. 38, the court relied on certain American authorities in support of its position that s. 11(b) reached the sentencing phase. The Supreme Court of the United States has since held that the sixth amendment “right to a speedy trial” does not apply to the sentencing phase of the trial process: see Betterman v. Montana, 578 U.S. ____, 136 S. Ct. 1609 (2016). [2] This court’s cases also leave unresolved the treatment of delay while a trial judgment is under reserve. That issue does not arise in this case. The Manitoba Court of Appeal recently split on the issue: see R. v. K.G.K., 2019 MBCA 9, 373 C.C.C. (3d) 1, appeal as of right to be heard September 25, 2019, 38532. [3] Both the Provincial and Superior Courts in Ontario require s. 11(b) applications to be brought prior to trial unless the court directs otherwise: Criminal Rules of the Ontario Court of Justice, at r. 2.4; “Provincial Practice Direction Regarding Criminal Proceedings”, (May 1, 2017), at s. 21-23 (Superior Court). [4] As explained below, at paras. 106-114, post-verdict delay may also attract different remedies. [5] See P. Paciocco, “The Hours are Long: Unreasonable Delay After Jordan” (2017) 81 S.C.L.R. (2d) 233, at pp. 243-45. [6] For example, see C. Sherrin, “Reconsidering the Charter Remedy for Unreasonable Delay in Criminal Cases” (2016) 20 Can. Crim. L. Rev. 263; Standing Senate Committee on Legal and Constitutional Affairs, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report) June 2017, at pp. 36-38.